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State v. McClenathan

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
May 18, 2015
2015 Ohio 1894 (Ohio Ct. App. 2015)

Opinion

CASE NO. 14-14-13

05-18-2015

STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMIE E. MCCLENATHAN, DEFENDANT-APPELLANT.


JUDGMENT
ENTRY

This appeal, having been placed on the regular calendar, is sua sponte being assigned and considered on the accelerated calendar pursuant to App.R. 11.1(E) and Loc.R. 12. This decision is therefore rendered by summary judgment entry, which is only controlling as between the parties to this action and not subject to publication or citation as legal authority under Rule 3 of the Ohio Supreme Court Rules for the Reporting of Decisions.

Defendant-Appellant, Jamie McClenathan appeals the judgment of the Court of Common Pleas of Union County, finding her guilty of burglary and sentencing her to four years in prison and a three-year period of post-release control. On appeal, McClenathan argues that the trial court advised her of the incorrect length of her post-release control. For the reasons that follow, we affirm the judgment of the trial court.

On May 24, 2012, the Union County Grand Jury indicted McClenathan on one count of burglary in violation of R.C. 2911.12(A)(1),(D), a felony of the second degree; and one count of petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree.

McClenathan, pled guilty to one count of burglary on November 20, 2012. Pursuant to a plea agreement, the State dismissed the count of petty theft. The trial court sentenced McClenathan to five years of community control.

On June 2, 2014, the State moved to revoke McClenathan's community control. The basis for the motion was the discovery that McClenathan used heroin and conspired to steal from Lowes and Home Depot.

On June 26, 2014, McClenathan admitted to her community control violations. The trial court revoked her community control and sentenced McClenathan to a four-year prison term for her burglary charge. The trial court then stated:

You're advised that if you serve your entire sentence, that you'll be subject to a period of post release control for a period of three years which will commence upon your actual release from prison. * * * You're further advised that if you violate the terms and conditions of post release control, that the Adult Parole Authority may impose a more restrictive sanction, may increase the term of post release control up to the maximum of eight years, or impose a prison term
upon you as a sanction not to exceed nine months at a time with the total cumulative prison sanctions in increments of nine months, not to exceed fifty percent of the state prison term originally imposed as part of the sentence.
June 26, 2014 Tr., p. 14.

The trial court issued a judgment entry journalizing McClenathan's sentence on June 26, 2014. In its judgment entry, the trial court again stated that McClenathan would be "subject to a period of post-release control for a period of three (3) years," and that if she violated the terms of her post-release control,

the Adult Parole Authority may impose a more restrictive sanction, may increase the term of post-release control up to the maximum of eight years, or impose a prison term upon the Defendant as a sanction, not to exceed nine months at a time, with the total cumulative prison sanctions in increments of nine months, not to exceed 50% of the stated prison term originally imposed as part of the sentence.
(Docket No. 43, p. 3-4).

McClenathan timely appealed this judgment, presenting the following assignment of error for our review.

Assignment of Error


THE TRIAL COURT IMPROPERLY ADVISED APPELLANT REGARDING THE LENGTH OF TIME SHE WOULD BE ON POST RELEASE CONTROL UPON HER RELEASE FROM PRISON.

In her sole assignment of error, McClenathan argues that the trial court erred by advising her of the incorrect length of time she would be on post-release control upon her release from prison. We disagree.

"Postrelease control is a period of supervision that occurs after a prisoner has served his or her prison sentence and is released from incarceration, during which the individual is subject to specific sanctions with which he or she must comply." State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 35, citing R.C. 2967.01(N). A violation of these sanctions "may result in additional punishment, such as a longer period of control, more restrictions during the control period, or a prison term of up to nine months per violation, subject to a cumulative maximum of one-half the original stated prison term." Clark at ¶ 35, citing R.C. 2967.28(F)(1)-(3).

R.C. 2929.19 governs the trial court's duty to conduct a sentencing hearing. R.C. 2929.19(B) states, in relevant part:

(2) * * * if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:



* * *



(c) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the * * * second degree[.]
* * *



(e) Notify the offender that, if a period of supervision is imposed following the offender's release from prison, as described in division (B)(2)(c) or (d) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the state prison term originally imposed upon the offender.

There is no additional requirement in R.C. 2967.28 or any other section of the sentencing statute that requires a trial court to inform the defendant of the other penalties that could be imposed by the parole board for a violation of the conditions set by the board. State v. Rodriguez, 6th Dist. Wood No. WD-10-016, 2010-Ohio-5513, ¶ 10; see also State v. Moxley, 12th Dist. Madison No. CA2011-06-010, 2012-Ohio-2572, ¶ 40. Instead, R.C. 2929.19(B) simply requires the trial court to notify the felony offender of two things in regard to post-release control, to wit: (1) the offender will be supervised under R.C. 2967.28, which governs post-release control, after he or she leaves prison; and (2) if the offender violates post-release control, then he or she is subject to an additional period of incarceration of up to one-half of the stated prison term originally imposed upon them. State v. Newsome, 3d Dist. No. 12-12-03, 2012-Ohio-6119, ¶ 72, citing R.C. 2929.19(B)(2)(c),(e).

We recognize that the trial court either misspoke or was incorrect when it stated that the Adult Parole Authority ("APA") may increase the term of post-release control up to eight years. According to R.C. 2967.28(D)(3), the APA recommends to the parole board, or a court pursuant to an agreement under R.C. 2967.29, to increase the duration of the post-release control. However, since the trial court was not required to advise McClenathan of this, any error associated with this mistake is harmless.

During the sentencing hearing, the trial court advised McClenathan that she was subject to a mandatory post-release control for three years and that violating the terms of her post-release control could result in the imposition of a prison term of up to one-half of her original sentence. We find that the trial court's advisements concerning post-release control were both proper and sufficient to satisfy R.C. 2929.19(B).

Therefore, we find McClenathan's arguments unavailing and overrule her sole assignment of error.

Accordingly, for the aforementioned reasons, it is the order of this court that the Judgment Entry of the Union County Court of Common Pleas be, and hereby is, affirmed. Costs are assessed to Appellant for which judgment is hereby rendered. This cause is remanded to the trial court for execution of the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this judgment entry to the trial court as the mandate prescribed by App.R. 27, and serve a copy of this judgment entry on each party to the proceedings and note the date of service in the docket as prescribed by App.R. 30.

/S/ ROGERS

JUDGE

/S/ PRESTON

JUDGE

/S/ WILLAMOWSKI

JUDGE
DATED: May 18, 2015 /jlr


Summaries of

State v. McClenathan

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
May 18, 2015
2015 Ohio 1894 (Ohio Ct. App. 2015)
Case details for

State v. McClenathan

Case Details

Full title:STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMIE E. MCCLENATHAN…

Court:COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

Date published: May 18, 2015

Citations

2015 Ohio 1894 (Ohio Ct. App. 2015)